26 December 2013

One of the understandable realities of private legal practice is clients wanting to know how much a legal service is going to cost. Unlike buying a television, usually clients don't ask "how much?" so that they can shop around for the best price, because no two lawyers or the services they provide are exactly alike. Rather, clients seem to ask about price to see if they can afford the service, or to determine if hiring a lawyer to do the work is worth it to them, instead of trying to do the work themselves, or not seeking a legal solution at all to their problem.

From what I hear, rather than focusing primarily on price, picking a lawyer will often involve people coming up with answers to questions like: (1) who do I trust?; (2) who do I think is most skilled and experienced?; (3) who responds best to my needs, like quickly replying to my questions or at least returning my phone calls or e-mails?; and (4) who is most convenient, either because the lawyer offers services through the Internet so that geographic location isn't a factor, or because the lawyer happens to be physically located close to where I live or work?

Picking a lawyer solely on price may be false economy. If you're retaining a lawyer on an hourly basis, hiring one who charges 30% less per hour, but ultimately bills you 50% more time, will cost you more in the long run.

Likewise, if you're hiring a lawyer based on a block/fixed fee, which is common in many solicitor matters like the preparation of wills or the conduct of real estate transactions, picking based on price (with a preference for low over high) might mean that you have little personal contact with the actual lawyer because s/he simply can't afford to give you a lot of face time due to the very low fees which mean that in order to pay for a high overhead and still turn a slight profit, a very large amount of business needs to run through the practice that inevitably will be mostly handled by non-lawyers under the overall supervision of the lawyer.

I've been fortunate that people never decide not to hire me because of fees (hopefully because they value my experience and responsiveness to their needs), except in one area of law: wills. I often conduct litigation on behalf of clients where the bills can unfortunately mount up because of the multiple court appearances and painstaking drafting of voluminous submissions that can be required in court actions, but those clients seem very satisfied with the value for money that they receive. Perhaps because I stay engaged with them to keep them informed of court progress, and collaborate with them on overall strategy.

However, when it comes to wills, I've found people occasionally choke on cost. It doesn't happen that often, but it does happen. The unfortunate part of the price aversion is that wills are likely the best value and often the least expensive of the legal services that I offer.

I sometimes counsel prospective clients not to hire me for litigation, even though that's how I mostly earn my living, because the amount in dispute is so small that my fees could exceed their potential exposure to liability. I believe I have a public duty not to profit from people's desperation when being dragged into court, and only take on cases when it seems I can provide value to clients that outweighs the legal risks they are exposed to.

But going to a lawyer for a will is going to always pay off in the long run. The risks of not seeing a lawyer for your will include hundreds of thousands and sometimes even millions of dollars not going where you intended it to go after your passing. Relatives could fall to infighting over your assets. The government could wade in to impose heavy taxes and fees. Everything could get tied up in court for years.

I haven't conducted any kind of survey to determine what people expect to pay for a will. But in my personal opinion (not speaking as a lawyer, but as a person who needs a will himself), a lawyer doing your will is probably the best bargain you will get in the legal services world. While the price of a will can vary depending on its complexity, they start at just a few hundred dollars. And that's not just my fees, but many lawyers' fees. Adding in powers of attorney for property and personal care will only slightly raise the price, and there is usually a significant discount for two spouses who have wills done at the same time (in Ontario, spouses always need separate wills).

To be frank (and I try to be as frank and open as possible with my clients and on this blog), I too prior to becoming a lawyer used to think wills were super simple things that one could whip up all by yourself on a Saturday afternoon when watching a football game on television. But then in law school I started to read about all the will disasters when things hadn't been executed properly, or important clauses had been forgotten, or unhappy relatives whom had been intentionally forgotten decided to initiate decades-long court battles worthy of a Dickens novel to overturn a will that they perceived as unjust.

Then, when I started drafting up wills in private practice, and reviewed voluminous legal texts on just how I was supposed to do that, I increasingly appreciated all the skill and care that need to go into a properly drafted will or power of attorney. The lawyer needs to learn about and understand your life. That can't happen in a ten minute meeting that is mostly comprised of the phrase: "sign here." Often more than one lawyer-client meeting will be required, the lawyer may need to carefully review a several of your financial documents, and some legal research could even be justified to ensure you get the will you deserve, that is ideally custom-crafted to your own personal circumstances. Not just to the circumstances of some "fill in the blanks" "model client" who doesn't really exist.

We all know there is an increasing litigiousness in our society. We also know that we are all passing away richer than ever. Now, if you own a home without a mortgage (or at least plan to be mortgage free in the future), you will be passing away rich by historic standards. Now, more than ever, it's vital that your assets go where you want them to go. Plus, with fewer and fewer people getting legally married, common law spouses will not necessarily have the same rights to assets/insurance/pensions of a deceased as would a legally married spouse.

So see a lawyer about your will. And don't be put off by the cost. It'll be the best bargain you'll ever receive in legal services! Trust me. I'm a lawyer.

18 November 2013

I'm frequently asked the question: "what's the difference between a Barrister and a Solicitor?" It's definitely a good question, since Canada is one of the only places in the world to still commonly use both terms, but not pigeon hole lawyers into one class or another.

In the United States (and a great deal of the rest of the world) there are only "lawyers," who are occasionally known by different names, like counsellors (a term we don't use in Canada, though we do use "legal counsel" or "Crown counsel").

The U.S. also likes the term "attorney." Canada has attorneys too, but they generally aren't lawyers. Rather, attorneys in Canada are people acting with "power of attorney" for someone else. Which is really where the U.S. term comes from, although technically the term in the U.S. should always be "attorney-at-law" to distinguish lawyer-attorneys from other kinds of attorneys. However, strangely enough in Canada we still like the terms Crown Attorney and Assistant Crown Attorney for our provincial prosecutors, though not for federal prosecutors who (I practiced as one for many years) tend to use the term counsel (or senior counsel or general counsel) to refer to themselves.

And to additionally add to the confusion, lawyers in Quebec who advertise in English tend to translate the French term Avocat as "Attorney," rather than as lawyer, or barrister, or solicitor.

More confused now than when you started reading this post? Well, let me sort things out for you then.

In England and Wales, where most of the legal traditions in both Canada and the United States (and a whole lot of the rest of the world) originated, there has been for centuries a distinction between Barristers who go to court, and Solicitors who don't go to court but rather draft/register documents for clients and retain Barristers on behalf of their clients to argue cases in court.

It can take English and Welch Barristers many years of additional training to qualify in their profession than it does for Solicitors to qualify in England and Wales. It's true that being a Barrister may seem more glamorous to some than the life of a Solicitor, but reality often doesn't match fantasy since Barristers there depend on Solicitors to pay them for their services, whereas in Canada Barristers like me can be retained directly by clients.

In North America that traditional distinction between Barristers and Solicitors never really took hold, perhaps due to a shortage of Barristers, and perhaps due to the great geography involved where small town Solicitors would have had to have continually called on big city Barristers to travel out at great expense to argue local small town cases.

The one place in Canada that a formal Barrister-Solicitor distinction seems to live on is Quebec, which has Avocats and Notaires, however the distinction is not directly analogous to the one in the U.K. Quebec's civil law traditions originally imported from France should have included Avocats (effectively Barristers arguing cases in court) and Avoués (effectively Solicitors), however Quebec like the rest of Canada wound up with fused professions of both Barristers and Solicitors simply being referred to as Avocats, some of whom go to court, and some of whom handle out of court matters.

However, Quebec also has the separate profession of Notaires (Notaries) who are capable of drawing up and registering notarial acts, and effectively handle quite a bit of the work that Solicitors handle outside of Quebec. Both Avocats and Notaires go to the same law schools in Quebec (I had a number of students in my class at McGill who chose to become Notaires), but then do different bar schools and write different qualification exams. You'll have to trust me that there are good reasons why everyone doesn't just want to be an Avocat.

The powers and training of Quebec Notaries should not be confused with those of Notaries in the other provinces of Canada. Notaries outside of Quebec possess very limited powers mostly concerned with certifying particular types of documents and don't need to be lawyers . Their role is similar to (though not identical to) Commissioners of Oaths. Thus on my bilingual business card in Ontario, on one side it reads Barrister & Solicitor, but on the other side it simply reads Avocat since the French translation of Solicitor is still Avocat.

Whether lawyers outside Quebec use the term Barrister, or Solicitor, or both terms, is largely a matter of personal preference and practice focus. Some lawyers who only go to court (doing either civil or criminal cases) will simply put the term Barrister on their letterhead. They're trying to send a message that court is the only thing they do. Other lawyers (even the ones who mostly go to court, like me), will put both Barrister & Solicitor on their business cards, to let the public know that we have both kinds of qualifications (even though in truth there is only one qualifying process), and to also convey that we from time to time do out of court work like drafting documents for clients.

In Canada, Solicitor is also often used as a synonym for counsel or lawyer, but never for Barrister. As in, we speak of the "Solicitor of Record" in a court case (even though he is really practicing as a Barrister) and in Ontario lawyers are governed by the Solicitors' Act (but not by the Barristers' Act, which is almost entirely devoted to who get to speak first in court - seriously). Unlike in England, I've never heard anyone in Canada say (like in Coronation Street): "after I have a pint at the pub, I'm popping around to see my Solicitor." Rather, we always go to see a Lawyer.

Now, I know by this point you may be sorry about ever having thought of asking a loquacious lawyer like myself the difference between a Barrister & Solicitor. But hopefully now you'll understand a bit of why the answer lies in a mix of history, politics, and simply how professional folks like to present themselves to the world.

The thing all those privileges have in common is the restriction of the disclosure or introduction as evidence into the legal system of what someone has said or written to another person, because public policy believe that fostering confidentiality within that kind of relationship is more important than exposing what is communicated, even when that communication might become important evidence in court.

In essence, legal privilege is supposed to foster frank and complete openness and honesty between certain persons. So that spouses can whisper secrets to each other, without the risk that one spouse will be hauled into court and forced to spills all the secrets the other spouse has whispered to him. Or so that informers can whisper secrets to their police handlers, without worrying too much that they might later get injured or killed because their identity will be shielded from court and public view.

Solicitor-client privilege is another variation on those various information privileges, which encourages the client to tell his lawyer the truth, the whole truth, and nothing but the truth, without fear that the lawyer will later be forced to tell a court what he was told by the client. But even solicitor-client privilege has its limits.

For instance, you can't hand over all your most incriminating pre-existing documents to your lawyer, in the hope that the mere act of handing them over will protect them from later police search and seizure. Writing a new letter to your lawyer explaining your situation and seeking advice might be privileged, and creating documents for your lawyer to assist with ongoing court litigation might be privileged, but it is the communication process that is the key part of the privilege creation, not the mere fact that the lawyer is now holding the smoking gun.

Law offices can be subject to search warrants, just like other physical locations. There are all sorts of special rules governing such law office searches which seek to protect client confidentiality. When serving as a Federal Prosecutor I used to spend a lot of time in court arguing about the admissibility of business records that had come into the possession of lawyers. But there is no absolute bar on such admissibility - just certain presumptions that might shift the burden of proving admissibility one way or the other.

And while honesty with your lawyer may be the best policy, and generally will be protected by privilege, you need to realize that your lawyer later in your case won't ethically be able to tolerate you giving a completely different story to the court. Confessing three murders to your lawyer might be protected by privilege, but later getting on the stand and denying under oath that your committed any of the crimes will likely cause your lawyer to withdraw from your case because she can't ethically support your perjury. So make sure that whatever you do tell your lawyer under protection of privilege remains your story later on, unless you have a very good reason for changing your story - like because you later remember important new details about a case.

The most positive angle to solicitor-client privilege is that it may by the strongest of the legal information privileges, and is the most widely supported by the courts, legislators and the public. By contrast, there is serious talk of trying to eliminate spousal privilege!

Thus the courts will be very, very cautious before ordering disclosure of anything you tell or have given to your lawyer. While other professions like medical doctors or accountants may have duties of confidentiality to their clients, and court will respect client "privacy" to the degree reasonably practicable, those are not "privileged" relationships, such that those professionals can be legally compelled in court to disclose what you have told them, and to produce records created based on information you have shared with them.

14 September 2013

Yes, I know, I know. No new posts for two months. I've not be providing my reading public the ongoing quality legal information they've come to expect. But there is a reason. The new Public Law Advocacy Headquarters!

Yes, that's right, I've bought an office building and have been doing a bit of decorating, plus installing a few essentials like proper air conditioning. Well, maybe the glass block wall wasn't an essential, but it sure looks good.

You, my clients and readers, have loyally supported my Internet presence, but I thought a bit more of a physical presence could be a good thing. It's conveniently located adjacent to a Highway 401 exit (Exit 814), in the town of Lancaster.

Yes, as in War of the Rose House of Lancaster. Producer of Henry the IV, V and VI of England (and II of France). I'm told its namesake town in England comes from Loncastre, meaning fort on the River Lune, and among its claims to fame on Wikipedia include producing "the all-girl punk-rock band Angelica." Maybe they never made it across the pond?

I've also hired an articling student, the most talented Matt MacLean, to assist you better in French or English. For those not in the know, think of articling a bit like the position of clerk Bob Cratchit in the employ of Scrooge in Charles Dickens' a Christmas Carol. Except I'm hopefully a very benevolent post-ghost visit Scrooge. Articling students have finished all their legal studies (in Matt's case degrees in both common law and civil law, as well as an undergraduate degree, in addition to bar school), but need to do a practical work term of 10 months to fully qualify as a barrister and solicitor.

The new PLA Headquarters will be having an open house later in October or in early November, so that all our old and new friends can come by to check things out. Stay tuned for news of it on the blog.

Here are a couple of additional views of the view of the still unfinished new digs.

Photo credit: Natalie Rowe

Photo credit: Natalie Rowe

Also on my list of recent happenings was attending with my friends from the Mohawk Nation at Akwesasne at their annual Akwesasne International Powwow, held last weekend on the 7th and 8th of September on Cornwall Island, which is the Ontario part of their very inter-provincial and international community which also includes territory in Quebec and the United States, all bordering the beautiful St. Lawrence River. Akwesasne means "Land Where the Ruffed Grouse Drums," and it remains a great area for wildlife as well as for Aboriginal culture, which was well on display last weekend with dancing, singing and drumming competitions, great artist vendors and great food.

For lunch I had an Indian Taco expertly and tastily made by folks from the Shubenacadie Indian Brook First Nation, who travelled all the way from Nova Scotia where I used to live and work, and served for a time as Canada's lead negotiator with the Mi'kmaq and Government of Nova Scotia under the Tripartite Forum negotiations process. Here's a link to a recipie and a few photos of a similar Indian Taco at Hilah Cooking.

We bought some art from the talented Jordan Thompson, brother of Kelly Thompson of the Aboriginal Rights and Research Office of the Mohawk Council of Akwesasne which I am working with on a constitutional test case. You can see his art over at Mohawk Art and Design.

And we also enjoyed the dancing, singing and drumming competitions, which have various rules and prizes.

I urge all of you in Eastern Ontario, Western Quebec, and North-Western New York state to consider coming out to the Powwow next year, usually held at the start of September. You'll find a warm welcome, and have a rich experience that you might not have thought possible so close to home.

09 July 2013

This post was inspired by Laura over on my Facebook page posting the excellent question: "Can you address what we can legally do when we see an animal trapped in a hot car in this heat? Can one legally smash the windows out?" Thanks Laura for the great question, as my favourite questions are the ones I don't immediately know the answer to. Here I did a little research for my reading public.With temperatures hitting record highs throughout North America, this is a topic we all increasingly hear about in the news. For children left in a hot car, there would be little legal doubt that you could intervene to save them from harm. But because animals are still considered to only be property in most jurisdictions, the legal situation of intervening to save them is more complicated.I found lots of folks online doing great work to raise public awareness about animals in hot cars. LA County in California has a Hot Cars Campaign in English and Spanish, including a Facebook page. The sometimes controversial PETA has a series of excellent and very reasonable hot cars materials, including even a campaign targeted a law enforcement officers to be careful when leaving K9 partners in police vehicles. And the RSPCA (in the UK) has a good list of tips concerning dogs in hot cars, including how to offer first aid.The best way to answer Laura's question is for me to suggest a series of escalating measures, as increasing legal risk to the person intervening.1. Call the police, or better yet your local animal control/SPCA enforcement unit. Almost all jurisdictions have laws on the books preventing cruelty to animals. While what amounts to cruelty unfortunately various a lot by jurisdiction, and is subject to lots of legal debate, hopefully most of us could agree that a slow and painful death from heatstroke amounts to cruelty - whether intentionally or just negligently caused. It's the animal control authorities and police who will have the statutory powers to intervene to save an animal, including breaking a window in a vehicle, and seizing the animal.Statutory powers mean that the legislators have empowered them, by virtue of the legislation they are appointed under, to do certain things to aid animals and take actions against the owners of mistreated animals. The rest of us regular citizens don't possess those powers. They will also usually be granted a certain degree of immunity under legislation for their actions, so that it is difficult (though not impossible) for an animal owner to successful sue them for actions they have taken.2. Try to see if the doors to the vehicle are unlocked so that the animal can be let out. Here at least you would not be damaging anyone's property. Though if you do let the animal out, you might be legally responsible for its care until it is either returned to its owner or turned over to the authorities. Thus try to make sure you have a way of gaining control over the animal prior to opening a door, in order to prevent the animal from being injured by traffic or running away.If you do take this course of action, you should ideally have a witness present who can verify that you didn't take anything from the vehicle, and that the weather and condition of the animal clearly indicated the animal needed immediate aid.Any legal proceedings against you here are unlikely.3. As an absolute last resort, you could break a window to save the animal, but you do need to be prepared for civil and possibly even criminal consequences. Because animals aren't people, even though cruelty to animals may be an offence, that doesn't legally empower you to become a one person animal car liberation vigilante army. You would generally be breaking the window without legal authority. The owner of the vehicle could therefore demand that you pay for the damage, and possibly pursue you in small claims court if you did not.It's even possible that you could be charged with criminal mischief, which at least in Canada is defined under s. 430 of the Criminal Code as wilful destruction of property. Sure you might be destroying the property for a good reason - to in essence save the life of other "property" - but that isn't really an excuse. Hopefully here the police or prosecution would exercise their discretion and not pursue any charges, thus I think the main risk is civil liability - which hopefully wouldn't be too great in value. Again, a witness (or two) would help. Ideally, taking a temperature reading inside the vehicle (although I don't think there's yet an app for that) would be best.Read More on How an Animal Law Lawyer Could Help You

14 June 2013

When facing allegations of professional misconduct, the first goal for any professional should be to advance a strong defence which can result in the professional regulator dismissing all of the allegations as unfounded. However, when that is not possible, the second goal should be to minimize the impact of any misconduct proceedings on the ongoing practice of your profession.

Professional misconduct proceedings can for many professionals actually have more detrimental outcomes than criminal proceedings for most of the population, because criminal proceedings rarely have the potential to permanently take away a person's livelihood. Not so with professional misconduct proceedings.

The good news is that professional misconduct proceedings embrace a wide spectrum of sanctions, ranging from admonishment, counselling or cautions on the low end, through to fines, suspensions and revocation of licence. Completely and permanently losing a licence to practice is rare, but it does happen, and needs to be guarded against at all costs.

Retaining someone to engage in resolution negotiations for you with the regulator at the earliest possible stage of proceedings - even at the investigative stage - can be the best way to minimize sanctions for professional misconduct. And even if a negotiated sanction isn't possible, strong representation before a hearing tribunal from someone who is familiar with past precedents of others in a similar situation who received reasonable sanctions will also benefit you.

The usual meaning of the term "in good standing" with your association, and thus your continuing ability to work in a professional capacity for an employer or yourself, usually only requires your licence to not be suspended or revoked. It does not preclude ongoing or completed discipline proceedings, as ongoing proceedings are only allegations, and even completed findings of misconduct are usually remedial in nature - seeking to push a professional in the right future direction, rather than snuffing out any future chance of change and contribution to serving the public.

The challenge with some professional discipline proceedings is the lack of an intermediate range of sanctions. For example, for the defence of some police officers whom I represent from time to time on internal administrative discipline matters, the maximum penalty might jump from forfeiture of 10 days pay to dismissal, with nothing in between. A negotiated sanction can therefore be important to minimize the risk that 10 days pay appears to a sentencing tribunal to be too minimal, and thus they jump directly to dismissal.

Proposing at an early stage a concrete remedial plan to the regulator can also be an important part of a strategy to minimize sanctions for professional misconduct. This remedial plan might include medical treatment of some sort, the taking of particular kinds of courses, or even working for a time under the supervision of another professional. You shouldn't leave it to the regulator to come up with a plan, you need to be proactive and then sell the regulator on a sanction you can live with. True, you aren't guaranteed they'll accept your plan, but with a firm enough advocate representing you, the regulator will realize the great costs it may suffer from conducting a protracted discipline hearing against you, and the risks it runs in not being successful at such a hearing. One particularly attractive incentive may be to voluntarily offer the regulator something that it might not be able to obtain through a tribunal imposed sanction, and in return request that no suspension or revocation of licence be imposed.

I find that the sanction outcomes of professional discipline proceedings aren't as bound by past precedent as are criminal and regulatory prosecutions in the courts. Discipline bodies can get more creative as to sanctions, your advocate can form a closer and more collaborative relationship with the regulatory investigators and prosecutors than would ever be possible in a criminal prosecution-defence situation, and thus an optimal outcome for you which minimizes the impact of any sanctions on the practice of your profession can be quite achievable.

12 June 2013

Lots of folks co-own real estate with other people. Perhaps most commonly, spouses may be co-owners. But so too are other family members, investors, business partners, corporations, and even governments.

Let's face it, acquiring real estate has always taken a big chunk of change out of anyone's budget, so co-owning enables that cost to be shared. Co-owning can also give security and peace of mind to others that their contributions to a personal or business relationship are valued, even where they aren't contributing cash to acquire the property. Finally, co-owning might be something imposed on you, like when you and your 17 brothers and sisters jointly inherit the family cottage from your deceased parents.

However, when those co-owner relationships break down in so severe a way that one or more of the co-owners are desperate to escape the relationship, what's to be done? Well, anything can be done by agreement. All parties agree to sell, and come up with some formula to split the net proceeds of disposition and the costs of sale, and you're in business. No lawyers required, other than real estate lawyers. Unfortunately, when even one of the co-owners adamantly refuses to sell, you're stuck. You can't secretly or publicly sell a property out from under a co-owner, unless you've previously concluded some kind of agreement with the person permitting sale. This is where the courts (and yes, wait for it, the LAWYERS) are needed.

Sometimes it will be a spouse who refuses to leave the family home notwithstanding the end of the domestic relationship. At other times siblings will fall to squabbling over who gets to stay at the cottage during the three non-rainy weeks of the summer, or how the repairs to the cottage will be funded now that snow has collapsed the roof, squirrels have eaten the wiring, and rising lake levels have swept away the beach. Or perhaps a business partner will flee in the middle of the night, leaving you on the hook for all property expenses, and not leaving you permission to sell the property.

But wait, the courts (and lawyers) have a cure for your property ills: the partition and sale application. Five things you need to know about it:

1. you need to go to a superior court of justice, which might be called something different where you live - generally the highest level trial court in your jurisdiction;

2. you need to provide notice (or at least make reasonable attempts to provide notice) to the other co-owners that you are seeking court authority to sell the property, and then prove to the court you provided such notice;

3. you need to put sworn evidence before the court, usually in the form of affidavits and exhibits, proving your rights to the property and why you need court authority to sell it;

4. you should try to present the court with a draft order seeking relief which spells out all the steps of sale you are seeking authority for - like listing with a real estate agent, for a minimum selling price based on an appraisal, and authority to transfer and register the transfer after sale notwithstanding the lack of consent of the co-owner(s);

5. you will usually be able to link in your application to some kind of statutory authority, like in Ontario where the Partition Act (isn't it nice when the Act's title is the same as what you are seeking?) says at sections 2 and 3: "All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land ... Any person interested in land in Ontario ... may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested."

True, I've never used the word dower since law school, and I don't think I've ever had occasion to even write the word coparcener, but hopefully you get the gist that anyone who owns an interest in land can ask for it to be split or sold. For most of us, it's unlikely we'll be co-owners of a vast tract of land without buildings that lends itself to being equitably split up, so usually we'll be wanting sale.

To accomplish all this, you'll usually need a lawyer. This isn't really a DIY law kind of undertaking. But with the value of real estate today, and the ongoing expenses of its upkeep, getting court authority to divest yourself of a property will hopefully be worth the legal expenses. Sometimes no one will even show up in court to oppose you, but you'll still need some authority to partition or sell.

17 April 2013

If you're a professional, chances are that sometime in your career you might have some form of complaint filed against you with your professional regulatory body by a client, member of the public, or the regulators themselves. If you accept that you're probably going to need a lawyer at some point in the discipline process, the real question is: when?

It's a personal decision for every professional as to when legal counsel should be retained, but I'll share with you my experience of the many professional discipline cases I work on, where counsel is retained early in the process as compared to late in the process. I've touched on this topic before in an earlier post, but want to highlight this time around the two fundamental stages to discipline proceedings, and the important consideration of insurance coverage.

INVESTIGATIONS STAGE VERSUS HEARINGS STAGE

Generally speaking there are two phases to most professional misconduct allegation regulatory processes: (1) investigations, and (2) hearings. Often these phases are broken up into sub-phases, but investigations and hearings are the two major divisions when it comes to deciding when to retain counsel.

The reality is that a lot of people wait until the hearings stage of professional discipline proceedings to find a lawyer. I completely understand why. At the investigations stage they think the matter might just go away, they think they aren't exposed to much risk, they want to keep the matter private, they hope that their own written submissions can persuade the regulator to drop the matter, they don't think a lawyer could do them much good early in the process, and they're concerned about legal costs.

The major factor these professionals often don't consider in delaying seeking out a lawyer is that the best chance to stop a misconduct hearing dead in its tracks is to prevent an investigation from ever getting to the hearings stage of proceedings. A lawyer is best placed to do this.

Acting for yourself at the investigations stage, you'll be at a significant disadvantage in: (1) not having a background in the discipline procedures of your organization; (2) not being fully informed of the means and range of potential resolutions to your proceedings; (3) not being able to talk freely and negotiate with the investigator or other officials of the regulator about your case because of the risk of your making prejudicial admissions and the possible reluctance of regulators to speak frankly with the target of an investigation.

Another important factor to consider is that legal counsel are usually far less expensive at the investigations stage than at the hearings stage. At the investigations stage, some factual and legal review, advice, negotiations and written submissions may be required, but there are no appearances before a tribunal, and no requirement to do all the work required by the many procedural steps leading up to a tribunal hearing. So early retention of counsel who can prevent a case proceeding to a hearing will save you money as well as worry. Even if your case does proceed to a hearing, the preparation the lawyer already did during the investigation stage might mean that the total investigation stage plus hearing stage legal costs would not exceed the costs of a lawyer brought in only for the hearing stage.

VERIFY INSURANCE COVERAGE

The last factor to take account of when considering the point to retain legal counsel is that you might already have comprehensive insurance coverage providing generous professional discipline proceedings coverage to pay all your legal fees at all stages of proceedings - both during the investigations stage and during the hearings stage. If so, why wait to engage that coverage.

You do need to carefully verify your insurance policy coverage details. Insurance usually doesn't cover the defence of criminal allegations proceeding in criminal courts - though rest assured that professional misconduct allegations don't usually escalate into criminal charges. Insurance may sometimes cover civil negligence proceedings against you in civil courts, though be aware that it might be a separate insurance policy that covers the civil proceedings, or that the professional misconduct insurance may have quite different coverage terms than that civil negligence coverage.

Consider contacting and assessing lawyers even before you contact your insurer. You may have a duty under your insurance policy to quickly report claims, so don't delay the reporting while you are lawyer hunting, but I've found that if you locate a lawyer you like prior to sorting out all the details of your insurance coverage, you insurer will usually let you use your lawyer of choice so long as his or her fees are reasonable and the work is within the scope of the policy coverage. Your official right to a lawyer of your own choice will vary depending on the terms of the policy, but I've found that insurers rarely want to interfere with lawyer-client relations, so even if in theory you are required or encouraged to use a lawyer off the insurer's "list," the insurer will usually do its best to either put your own lawyer on the list, or grant you an exception to the list lawyers.

MAXIMIZING GAINS AND MINIMIZING RISKS

Engaging a lawyer at the earliest possible time in professional misconduct allegation proceedings could be free (if you're insured), will minimize your overall legal expenses (even if you aren't insured), maximize your chances of terminating misconduct investigations prior to their escalating to discipline tribunals, and minimize the scope and impact of any tribunal hearings that do actually happen by shaping the constellation of facts and allegations that go before the tribunal.

07 April 2013

Common law spouses have in Canada and elsewhere acquired many of the rights and duties previously enjoyed only by legally married spouses. However, living common law does still not amount to the same legal existence as being married, be it where family law, tax law or immigration law is concerned.

For immigration to Canada purposes, spouses might both be trying to come to Canada, or one spouse might already be a Canadian citizen or permanent resident, and thus be potentially eligible to sponsor the other spouse as a Canadian immigrant. This post is only about the pros and cons of marriage where one spouse is eligible to sponsor.

Canadian immigration law has now extended similar rights of sponsorship to common law spouses as were previously only available to married spouses. However, being considered common law spouses requires that you have been continuously living together for at least one year prior to your immigration application. This proof of cohabitation can be a hassle. And for the spouse from a country where Canada doesn't like to issue visitor visas, because of what it may perceive as the risk that people of that nationality won't depart Canada after their visitor status expires, common law spousal status may be an impossibility unless the Canadian spouse wants to move abroad in order to co-habitate so that a common law spousal sponsorship application can happen.

Getting legally married means you don't need to prove to the Canadian government that you've lived together for even one day. You might need to show some evidence about the legitimacy of the marriage, but that's a lot easier to do than proving the legitimacy of a common law relationship. Show you had a wedding ceremony, show that your families know about the marriage, show that you care about each other through your communications/gifts/visits/children, and you're probably good to go as far as Citizenship and Immigration Canada (CIC) is concerned.

But in order to demonstrate common law status, CIC usually wants proof of joint bank accounts, life insurance policies, property ownership or leases, and affidavits from yourselves, family, friends and neighbours, in addition to your being able to precisely prove that you've been living together for a year prior to applying. Start co-habitating in Canada, then get called back to your homeland for 3 months because of a sick relative, and you've likely wrecked your chances at common law status. Brief times apart are acceptable, but it's a matter of government discretion to as how much of a separation will be considerable permissible.

You should also be aware that with same sex couples finally having the same rights to marry in Canada as opposite sex couples, the get married or don't get married for immigration debate is now as relevant for them as it is for all other couples.

To be clear, a sham marriage is not going to go over any better with CIC than a sham living together common law relationship. But the bottom line is that marriage will likely make your immigration application process go more smoothly.

If you're committed to never getting married, and can eventually qualify for common law status, the desire for immigration shouldn't make you violate your no marriage principles. But if you're like a lot of my newer couple immigration law clients who have been living together for around a year, are keen to be permanently united in Canada, and are thinking about eventually getting married but are putting off marriage for a couple of years until they are more settled, I always suggest that they carefully consider their position.

If the nature or newness of your relationship means that marriage isn't even on the horizon, then by all means proceed with a common law spousal sponsorship application. But if you have been talking about marriage anyway over the last year, and are thinking it is something you want to take care of very soon after the immigration process is finalized, you should think about whether it might be possible to get married prior to applying for immigration.

Marriage won't cure a shaky immigration application, and common law spousal status won't wreck a solid application, but marriage may make things easier. Just some food for your collective wedding cake sweet tooth.

05 April 2013

With tax season now in full swing, I offer you the following thoughts on why the Tax Court isn't such a bad place to litigate against the government if you're unhappy with your assessment, reassessment or confirmation of taxes.1. Electronic Filing - you can file pretty much any document that needs to be filed with the Tax Court by simply uploading it to the court's website, which is a still very rare practice in Canada. The Court even lets you file now, and pay later - you can mail in the filing fee within 5 days of filing the documents electronically.2. Hearings and Registry Offices in Convenient Places - you can ask the Tax Court to hold a hearing almost anywhere in Canada, and it will regularly hold hearings in places as small as Wabush, Yarmouth and Percé. Plus there are registry offices for the court in every province and territory. By comparison, for many courts you're required to travel to the court, the court won't travel to you.3. Easy to Get Hold of and Knowledgeable Registry Officers - wondering about an answer to the rules of court? Just pick up the phone, and helpful registry officers who are easy to get through to will answer all your questions.4. Simplified Rules of Procedures - the Tax Court still has rules of procedure, no court can operate without them, but for the Tax Court the rules are a lot simpler than the ones you will find in other courts. It seems like someone carefully went through the rules of other courts when putting together the tax court rules, and threw out everything that seemed overly technical, and which would not particularly enhance litigation economy.5. An Expert Bench - in many courts judges are supposed to be experts in a host of areas of law, but the reality is that it isn't possible to be an expert at everything. But with the Tax Court, the judges really can become experts because the court's jurisdiction is narrow enough: the Income Tax Act, Employment Insurance Act, GST/HST, CPP, Old Age Security, and a few other Acts.Now that you're all excited about going to Tax Court, there are a few things you need to take account of before filing your appeal: (a) you will usually need to file and receive an answer to an internal objection first from an appeals or review officer within the government department that denied your claim prior to appealing to Tax Court; (b) if the taxpayer is a corporation, it must be represented by legal counsel, and (c) if your appeal is complicated, it's a great idea to be represented by a lawyer. At least in tax appeals it's often clearer than in some other types of cases as to whether hiring a lawyer is worth it, based on a comparison of the amount of tax in dispute compared to the likely legal fees to be incurred.

03 April 2013

It's now undisputed that Canadian Aboriginal peoples have rights. But if you're a member of one of those peoples, you might be wondering: "How do I claim my rights?"

You might be asking yourself questions like: "If I'm in court being criminally prosecuted or civilly sued, how do I invoke my rights?"

If you see environmental destruction being visited on your traditional territory by private interests, or witness the destruction of your community's way of life by government interests, you might wonder: "how can I use my rights in court to stop this destruction?"

The short answer is that you can accomplish a lot through relying on your rights in court, but you need to understand their limitations, and that the burden of proof falls entirely on you in court to prove those rights.

Limitation #1: Aboriginal rights are collective rights exercisable by individuals. What this means to you is that you need the backing of your community to assert rights in court, and you need to be able to prove that you're a member of that community. There's no precise test of what an Aboriginal community amounts to for the purpose of a rights claim, or what being a member of the community requires - this is NOT a question of being on some Indian Act band list (though that can help). But you can't be out acting on your own without at least tacit or implicit community support if you expect to invoke Aboriginal rights in support of your actions.

Limitation #2: You need to be clear on whether you are advancing an Aboriginal title claim, Aboriginal treaty rights claim, or non-treaty Aboriginal rights claim. Unless you have the backing of your whole nation, and millions of dollars to spend on the litigation, don't bother with title - the courts have been clear that title exists, but don't seem to want to award it to anyone even after trials that have lasted for years! If your community is connected to a treaty - historic like those on the map above, or modern like those on the map below - carefully comb through its language to see if there is something in there which might help you. If your community doesn't have a treaty, or if the treaty isn't of any help in your particular situation, then you are left with a straight forward Aboriginal rights claim.

Limitation #3: You'll need lots of evidence to support your claim. You can't just make a bald claim of a right, and presume the court will accept it. In fact, the Crown might call evidence to rebut anything you do present, so make sure your evidence is relevant, compelling and voluminous. You might need an expert witness historian or anthropologist. If this sounds a bit much, remember that you're playing by the rules of court, not necessarily the rules of common sense.

The most important thing you can do to make an Aboriginal rights claim work in court for you is to claim only the narrowest right which is still broad enough to assist you in your case. The broader the rights claim, the more evidence you will need, and the more nervous the court will get that granting you your claim might lead to an unpredictable domino effect throughout Canada among other Aboriginal peoples. You'd be quite right in thinking this wouldn't be such a bad thing, but remember that courts are by nature conservative institutions that worry about rocking the boat of state.

You also really need a lawyer to make an Aboriginal rights claim work in court. There's certainly some legal work people can do for themselves, but Aboriginal rights claims can only be described as complicated and challenging to advance, even for the lawyers who are familiar with those types of cases. But you shouldn't necessarily expect to pay for all those legal costs out of your own personal pocket - these claims mainly work when a community is willing to support their costs (because there will ultimately be a benefit to the whole community), when the government agrees to provide test case funding, or the government is ordered to provide funding by a court.

18 March 2013

In a perfect world, we might have just one court, with one judge (or a panel of a few judges) to hear all of our legal disputes. We'd all know where to turn for help, and while we might never fully grasp all the byzantine intricacies of the rules of court, at least there would be only one set of rules to deal with.

But alas, we live in a world of reality, where courts are divided into parallel geographic jurisdictions, further divided by subject matter jurisdiction, and even further split up by levels of appellate jurisdiction. The rise of increasing government regulation has also led to a proliferation of boards and tribunals, which often act like courts, but whose hearing officers aren't judges and often aren't even lawyers.

So how many courts are there to choose from in Canada? Maybe some PHD student has tried to figure it out, but I honestly can't tell you. I would say on the low end, if you don't count boards and tribunals, and don't count sub-courts (like Drug Treatment Courts) that are really just specialized applications of larger jurisdiction courts, you would still get close to 100 courts in Canada. On the high end, with everything thrown in, you might get a number ranging up towards 1000! Justice Canada has produced a good guide to Canada's Court System, which goes into a lot more detail than is possible in this blog post.

How are you supposed to know which one to go to in order to resolve your problem? There are a few tricks:

1. figure out where you live, and ignore courts not covering your geographic area (that will get rid of about 80% of them) - although there are complex rules about in which jurisdiction you must initiate a proceeding, which could force you outside of your geographic area;

2. figure out whether you have a trial problem, or an appeal problem (that will further significantly reduce the number of courts to choose from);

3. consider what kind of legal subject you have to deal with - this is the trickiest part of the equation, as unfortunately most courts don't carry the name of areas of the law on their titles (like in Ontario, family law issues can go to the Ontario Court of Justice or Ontario Superior Court of Justice), but some do bear self-explanatory names like the Tax Court of Canada;

4. check whether the statute which created the court or articulated the court's procedure talks about its jurisdiction - like the Ontario Small Claims Court's legislation says it is limited to damages or the return of property not exceeding $25,000 in value - anything greater and you must go to the Superior Court of Justice.

You unfortunately can't even depend on a court to articulate its own jurisdiction, though court counter clerks and legal aid clinics might be able to provide you with some helpful tips. I once heard a story of two lawyers in Toronto who were always being told that their applications were in the wrong court, regardless of which court they applied to. In order to conduct the best test of jurisdiction possible, one day they brought two identical applications, returnable on the same day, in two different courts, with one lawyer of the firm appearing in one court, and the other lawyer from the firm appearing in the other court.

And what do you think they were each told by the judge sitting in each respective court? That they were each in the wrong court, and needed to apply to the other court where the other law partner was appearing on the very same day, attempting to obtain relief for the very same issue!

21 January 2013

A lot of you might have been wondering about what the recent protests by Aboriginal peoples and their supporters across Canada are all about. I'm a white guy - about as white as they come since most of my extended family still lives in Scotland. I'm not speaking here for Idle No More or for any particular Aboriginal people. But I've spent a lot of the last 18 years working with Aboriginal peoples all over the country. From Vancouver Island, to Nunavut, to Newfoundland & Labrador.

I've spent a lot of time listening. And observing. And feeling very welcomed.

Thus I offer I few of my own observations as an Aboriginal lawyer who now works for Aboriginal peoples in Canada, but previously worked for many years on the Federal Government side.

I'd suggest that on one level Aboriginal people want what all other Canadians want: (1) good schooling for their children; (2) adequate health care; (3) jobs; (4) safe environments for their families.

On another level, however, Aboriginal peoples have been repeatedly recognized by Canadian courts as possessing rights other Canadians don't have. Thus they want those rights respected - full stop. The challenge lies in defining what those rights are, and in adapting modern practices to historical promises.

Some out there may rail against "special rights," but when it comes right down to it non-Aboriginal Canadians are already beneficiaries of many classes of special rights based on age, parental status, residency, health or disabilities, language, or other aspects of their lives. In many respects, Aboriginal rights are already a lot more limited than other Canadian rights, as they are not individual rights, but rather "collective rights exercisable by individuals," meaning that the collectivities control how and by whom the rights may be used.

In considering why you may not be hearing a single voice or message out of the Idle No More movement, you need to understand the diversity of Aboriginal peoples in Canada. According to the Assembly of First Nations (AFN) there are at least 630 "First Nations" in Canada, but even the AFN only represents (according to its Charter ): "The Chiefs of the Indian First Nations in Canada" together with their people. Some of those First Nations are comprised of thousands of members, while others are only comprised of a few dozen members.

You also need to understand that the term First Nation usually doesn't include the Inuit people of the Northwest Territories, Nunavut, Northern Quebec and Labrador. Nor the Métis people who are spread throughout Canada, but particularly concentrated in Northern Ontario and the prairies. Nor sometimes the numerous off-reserve, non-status Aboriginal people - many of whom live in Canada's cities.

Some of these Aboriginal peoples have historic treaty rights embodied in short historic documents, while others are beneficiaries of modern treaty rights contained in exceedingly detailed and lengthy documents. And some have non-treaty Aboriginal rights like hunting and fishing rights.

Although the AFN doesn't represent everyone, it remains the most representative and largest of Aboriginal organizations, and so in considering Aboriginal change priorities its worth looking at an important document the AFN issued on 11 January 2013 entitled "Fundamental Change, Remedies and Actions Required For First Nations Immediately." This document sets out 8 brief points and is quite instructive in the consensus it shows, and the way it goes into a lot more detail than what more general Idle No More movement principles may reflect.

In summary, the eight AFN principles call for:

1. establishment of a working process for implementation and enforcement of Treaties on a Treaty by Treaty basis;

2. reformation of the land claims process through reform of the comprehensive claims policy based on recognition of inherent rights rather than extinguishment of rights;

3. resource benefit, equity and revenue sharing;

4. that all new Canadian legislation should be consistent with existing Canadian constitutional and international human rights protections of Aboriginal peoples;

5. transformation of the fiscal relationship between the Crown and First Nations;

6. establishment of a national public commission of inquiry on violence against indigenous women and girls;

7. a guarantee of schools in every First Nation that reflect First Nation language and culture and provide a safe and supportive place to learn;

8. establishment of a secretariat within the Privy Council Office of the Government of Canada responsible for First Nation-Crown relations.

It is, to be sure, a diverse list. But you need to understand that it's reflective of the diversity of Aboriginal peoples in Canada. As well as being reflective of the stark social and economic realities faced every day by many of those peoples.

11 January 2013

Okay, so bees aren't perhaps at the top of everyone's list of pets, but bees from the right species and with the right housing could be considered domesticated animals. If you keep them (or horses or dogs or kittens), are you liable for everything your animals do? Nothing worse than a kitten with cattitude, you know!In common law jurisdictions like the U.S. (outside of Louisiana), Canada (outside of Quebec) and the U.K. (outside of Scotland), liability usually flows either generally from common law jurisprudence developed through court decisions of the past hundreds of years, or from statute law created by politicians in our legislatures.For general common law liability principles, I offer you the reasons for judgment in Pittman v. Morin, 2010 NSSM 56, a fairly recent decision of the Small Claims Court of Nova Scotia (and no, I'm not making this one up):

This matter involved damages caused to the claimant's car by a goat of the defendant … At a time when the defendant was away on vacation his goat was being “goatsat” by another person, at 6:30 in the early morning … the claimant was driving her child to daycare and when that child exited the car the goat appeared and went after the child.

The child’s screaming alerted the mother and older siblings who were also in the car at the time. The child tried to get away from the goat however the goat continued to try to jump on the child. Running around the car the child eventually managed to get back in the car however the goat proceeded to go after the child ramming into the car and causing damage. An older sibling who was in the car tried to get the goat away from everyone but was unsuccessful and the goat eventually jumped onto the car causing further damage.The owner of the goat, the defendant in this case explained to the court that the goat was a very friendly goat and that it likes “kids”… He said that it was a well behaved goat and he showed the court pictures of his goat which appeared in a CBC news article under the caption of "Billy goat too gruff: neighbors" … the consensus of those that spoke in the news article indicated that the goat had a propensity to attack and cause a general disturbance with respect to the neighbors and their property ... the law imposes a very high duty on the owner to prevent any kind of injury from such animals even if the owner believes in his own mind that the animal is harmless ...

The owner of such animals that fall within this strict liability category might escape liability if they can show ... consent of the person who is injured ... contributory negligence ... an act over which the person has no control ... an act of God ... In each of these cases ... the owner must show they used due diligence to ensure the damage did not happen ...

For all these reasons the defendant is liable for damages caused by his goat.

Statutory liability which modifies common law principles is sometimes stated in quite general terms, like in Manitoba's The Animal Liability Act, which defines animal as "any creature that is not human" and stipulates that "the owner of an animal is liable for damages resulting from the harm that the animal causes to a person or property, but ... the court shall reduce the damages awarded in proportion to the degree ...to which the fault or negligence of the plaintiff caused or contributed to the harm." An exception is only provided for "livestock" where the Act states there is a defence to claims for their damage when "control of the livestock was in accordance with generally accepted agricultural practice; or ... the livestock was at large due to an act of God or the act or default of [another person]."But what if a wind storm blows down a fence that wasn't adequately maintained?Some statute law gets very specific, like Ontario's Dog Owner's Liability Act which was already limited to only one species of animal, and which then was recently extensively amended in an attempt to ban pit bulls on the dubious assumption that such a ban would dramatically cut down on the number of serious dog bite incidents in the province.That Ontario law states that: "The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal" and that "The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages." However, "Where a person is on premises with the intention of committing, or in the commission of, a criminal act on the premises and incurs damage caused by being bitten or attacked by a dog, the owner is not liable ... unless the keeping of the dog on the premises was unreasonable ...."As you can see, pet owners are held to a very high standard of care when it comes to preventing their animals from injuring people or property. For non-farm animals like dogs, liability may in fact be absolute such that even a defence of due diligence will fail. I have one lawyer friend who told me that dog bite law suit cases used to be a sure fire winning part of this plaintiff practice, producing significant recovery for plaintiffs (and fees for him). You've been warned. And especially beware of goats!Read More About How an Animal Law Lawyer Could Help You

06 January 2013

Though lots of us don't like contemplating our mortality, you need to do so at least once in your life (and preferably every ten years or so as your personal circumstances change) in order to draw up a will which will tell your executor and the world at large what you want done with your estate.If you're an animal lover like me, there's a good chance that one of the pieces of property (legally there's no arguing with their "property" status) you will leave behind will be a pet of some sort. Maybe many pets. Regardless of whether it's a short-lived gerbil, or a long-lived parrot, you need to make advance arrangements for who will care for the pet, and how that pet will be materially supported once you're gone.People always make arrangements for their children in their wills, but they often omit their pets. The thinking when drafting the will might be, "oh, I'll definitely outlast Fluffy" with no thought given to the fact that there may in the future be a Fluffy II, Fluffy III and Fluffy IV, or that death does occasionally visit the young(er) through accident and disease.Alternatively, the testator (the person making the will) might erroneously believe that all of her beneficiaries will be fighting over the chance to give Fluffy - an ill-tempered beast at the best of times, who recently sent a grandchild to the ER after he got a little too lively during play-time - a luxurious home for life.In contemplating your pets when drafting your will, you need to figure out three things:1. what pets might you have when you pass on?2. who might be best placed to care for all or some of them?3. how might they be financially provided for?Just like it's not a great idea to make your prized grandfather clock your only bequest in your will to your most beloved grandchild, because that clock may no longer be around when you pass due to downsizing when you moved into the nursing home (a less specific monetary gift, or percentage of your estate is a better choice), it's likewise not ideal to name all your pets in your will. They may have changed in name, shape or size by the time the will becomes active, and your tastes in pets may have also changed from fluffy kittens to not so fluffy pythons. Instead, think of numbers of pets and/or types, when you are thinking of who might be able to care for them, and how much such care would cost.The who to care for them question can be quite tricky if some of the people you name in your will are no longer capable of caring for pets when that care is really needed. A good choice can be to name a specific person, an alternate to that person, and then give your executor a residual discretion to find someone. Often, just leaving it to your executor to choose appropriate homes may be the way to go, but offering some hints in a separate note as to who might be open to the idea of taking the pets could be a lot of help to the executor. It's usually not a good idea to will them to an animal shelter, as that shelter may have not ability to take them in at the needed time.Financially providing for pets can be the most confusing area for people drafting wills. Some will try to leave money directly to the pets - and have the gift fail, because pets ARE property, they can't OWN property. Others will try to set up a trust for the pets, and likewise have that gift fail because (in Canada) pets cannot be the beneficiaries of trusts. Even in the U.S. where pet trusts are legal in many states, you need to think about just how much of your estate will be consumed in establishing and operating the trust - trusts aren't cheap.The best option in providing for pets after death is often to specify that a sum of money be paid to the person or persons who permanently take the pets, to be used for the care, feeding and medical expenses of the pet. For instance, you could say: "To the person who takes permanent custody of my dogs, I leave a bequest of $5,000 per dog which that person takes." So if there are four dogs, and one person takes all four, then they would get $20,000. Take only two of the four dogs, and receive only $10,000. You could also name a number for cats or other pets, or not be species specific, but in case you recently picked up some goldfish just before your death, you might not want the person taking your three goldfish getting $15,000 and the person taking your dog only getting $5,000.These kinds of monetary bequests are based on your or your executor's trust of the person taking the animal. Unlike a formal "trust" which is ultimately court supervised, simply leaving money in a will to accompany an animal to its new home does not guarantee the person receiving the money will only use the money to support the pet. But the technique is probably the best compromise available which both finds a suitable home and provides financial support.Giving a percentage of the residue of your estate to a person taking a pet is also possible, rather than a fixed cash gift. The advantage of giving a percentage is that you don't need to worry if you die so poor that there won't be anything left for anyone else after the set sum of pet money is paid; the disadvantage of percentages is that a small percentage may generate a minute amount for pet care, whereas a large percentage could lead to the pet custodian receiving far more than is needed for the care of the animal. Plus most importantly, it's hard to know how much money you'll have when you die.I generally prefer the fixed sum cash bequest route for pets, so long as you are relatively certain that your estate will be considerably larger than the sum of all the amounts you are leaving for your pets.The overall estate planning philosophy I recommend when it comes to pets is keep it simple, but nonetheless remember them in your will.

02 January 2013

Yes, even the Wikiworld needs some effective and low cost business dispute resolution now and then
Image Credit: Wikipedia

All businesses are going to require some dispute resolution (DR) eventually, be it with clients, suppliers, government, or internally among management and/or employees. Businesses that successfully navigate the DR minefield usually employ good DR practices. Those whose operations become impaired, paralysed, or even bankrupt while trying to resolve disputes often tend towards the bad and ugly side of the DR practice world.

1. THE GOOD -Draw Up a Written Business Agreement Long Before any Dispute Arises that is Detailed Enough for Everyone to Know their Rights and Responsibilities, and Not so Detailed that No One Can Understand the Agreement.

Sticking with purely oral agreements where lots of money is at stake
only invites problems in the future when the parties all have different
recollections of what really was agreed to.

Such written business agreements can apply to clients, suppliers, or internally to a company organization itself. Now I know that while some degree of trust may make the business world go round, and that every aspect of business dealings can never be committed to writing (as much as the lawyers might wish it so), setting out the basic ground rules of any relationship isn't such a bad thing at the outset.

No need to get too complicated here on putting things in writing - better one page of text that is a little on the vague side but that everyone has read and understands, than 100 pages that no one will ever read or understand (other than the lawyers who drafted it, who themselves might be a little light on understanding if they couldn't agree on definitions for key terms).

2. THE BAD (maybe) - Deal with the Dispute Yourself.

Before a disagreement turns into a dispute, I absolutely advocate dealing with it yourself. Turning a disagreement which might be easily resolved through a personal touch, a little goodwill, and a fair bit of compromise over to a third-party is a good way to guarantee it will turn into a dispute, because the third-party may not have the personal relationship, goodwill or ability to compromise which you as a business owner or manager possess.

But once you are faced with a full-blown dispute, some professional dispute resolution skills, plus a bit of objectivity, may be called for. In Ontario if the dispute goes to litigation you may legally be required to retain a lawyer to represent your corporation if you are in a court higher than Small Claims court (natural persons can represent themselves at any level of court, but not "legal" persons like corporations).

3. THE UGLY - Unilaterally Refuse to Honour Your Side of Business Agreements
Just because "the other side" (whomever that might be - client/supplier/co-owner/employee) seems to not be honouring their side of a bargain, doesn't mean that you can simply decide to not honour your side of an agreement. Even though you might feel quite morally justified in your retaliation, the courts will likely not view your actions that way. T

hat same "other side" that you felt so slighted by could, in fact, be the aggressor in court, sue you, and win because of your breach of agreement. Arguing they breached first may not save you. Whether a breach really is a breach is in the eye of the beholder, and not all breaches are created equal.

4. THE GOOD - Agree in Advance on Dispute Settlement Mechanism(s)

There's nothing wrong with anticipating disputes in advance, and committing to writing how those disputes will be solved. Be it Mediation, Arbitration (binding or non-binding), the Courts or Arm-Wrestling, the means of DR could each be rungs on a ladder ultimately leading to litigation, but by forcing to parties to first try out some DR short of full-blown litigation, the DR process may be wind up be much shorter and cheaper.

5. THE BAD (maybe) - Use Three Arbitrators, or Any Arbitrators

ADR (Alternative Dispute Resolution, sometimes more recently referred to as Appropriate Dispute Resolution) is increasingly "hot." Everyone (or at least everyone's lawyers) seems to want to throw ADR clauses into their business agreements, fully confident that ADR is a panacea to clogged, expensive and at times apparently unjust court systems. The people signing these agreements expect ADR to be fast, cheap, and always lead to justice because they get to choose the decision maker.

While a little ADR is always a good thing, as ADR can be as simple as forcing all the parties in a dispute into the same room (or at least adjoining rooms) to attempt to negotiate a mutually acceptable solution prior to enriching lots of litigation lawyers, packing business agreements with mandatory use of binding three arbitrator panels for every type of dispute can wind up being slower, more expensive, and less "just" than the courts! How so?

Because in court-based litigation, the mandatory rules of court impose strict timelines to push cases forward. Sure those rules can occasionally be abused to drag out a case, but in arbitration there are no rules other than the rules agreed to by the parties. What if one party in arbitration does everything possible to drag out the appointment of an arbitrator? Where are you going to go to insist an arbitrator gets appointed? Why, to those very courts you are trying to avoid! But the only thing your expensive visit to court will accomplish is to jump start the ADR process, rather than resolving the underlying dispute. And what if once you finally get your arbitration judgment, the other side refuses to accept it? Well, you'll be headed back to court yet again!

Most importantly from a DR costs perspective, in court you only need to pay for your lawyer, not for the judge, court staff, courtroom, and all the other myriad court support costs. In arbitration, you're stuck paying for everything yourself! And if you have decided to stick in a three arbitrator clause in your business agreement, thinking somehow that the result of three people's thinking will be fairer than one (usually because each side picks one arbitrator, and then those two arbitrators pick the third arbitrator), have you really calculated what paying for three judges is going to cost? Or how difficult even finding three well qualified judges is going to be, not to mention aligning their respective schedules, unless your business is located in Toronto? And what if you have to start paying travel fees for all of them?

So think twice before putting any form of mandatory ADR in a business agreement. Make sure you know the true implications of an ADR clause. And especially be careful about requiring three arbitrators, unless you contemplate them settling a multi-multi million dollar dispute, where their costs will be a minor component of the amount of money at issue.

6. THE GOOD - Agree in Advance on Court Jurisdiction

It's always good to agree in advance on which courts will have jurisdiction over a dispute. Don't mention jurisdiction in a business agreement, and you could wind up having to defend a civil suit launched against you in Texas. Usually the party drawing up the contract will insert the court jurisdiction for the location where its head office is located. Sometimes jurisdiction can be the subject of negotiation (you could even agree to two jurisdictions as alternatives). Within Canada, while there are significant differences between the laws of various provinces, what you most want to avoid is litigation in a foreign country, where the law will be dramatically different and your Canadian legal counsel will no use to you at all.

7. THE GOOD - Keep it in Small Claims Court
Small claims courts have quite limited jurisdiction. They are usually restricted to monetary damages or the payment of money, and their upper monetary value won't be any greater than $25,000 in Canada (and in many parts of Canada is a lot less than that). But for bang for your buck, small claims court is a whole lot cheaper and quicker than higher courts. Even if you're owed more (even way more) than 25K, it's a good idea to stick with Small Claims limits.

The most important limitation about Small Claims court is that you usually can only claim money or the return of property, not something more creative like an injunction (where you'd have to go to Superior Court).

8. THE GOOD - NARROW DOWN THE ISSUES

Regardless of whether you are using an ADR or court-based dispute resolution process, narrowing down the issues in dispute will save you money.

First, try to toss out any issues that aren't "legal issues" or "justicible" - meaning no court is going to decide on them.

Second, attempt to agree with the other side on "the facts" - the majority of negotiation, mediation, arbitration or court time may be wasted while the parties disgorge dumptruck loads of evidence concerning facts that aren't really in dispute.

Third, try to identify the key legal issue(s) that will make or break the case, and get rid of the collateral issues. You can waste of lot of money paying your lawyer to prove you are legally in the right over an issue that doesn't determine the key legal issue in dispute.

In some cases the only real issue at the end of the day is whether any damages were really suffered as a result of one of the party's conduct, and how much those damages should be.